Ex parte Hayes

Original
Proceeding from the 254th Judicial District Court Dallas
County, Texas Trial Court Cause No. DF-05-19243

Before
Justices Bridges, Fillmore, and Schenck.

MEMORANDUM OPINION

ROBERT
M. FILLMORE JUSTICE.

Relator
Loren Todd Hayes is confined in the Dallas County jail on the
trial court's March 6, 2017 order holding him in criminal
and civil contempt for failing to pay court-ordered child
support. Relator filed his petition for writ of habeas corpus
on May 5, 2017 claiming the underlying commitment order is
void and his due process rights are being violated. He seeks
to be discharged from confinement. We denied the petition
because the record did not show that relator was in custody
at the time of filing the petition and did not include a
transcript of the trial court's March 6, 2017 hearing.
Relator filed proof of current confinement and a
reporter's record with his May 29, 2017 motion for
rehearing, which is now before the Court. By order dated June
8, 2017, we requested the real party in interest and
respondent to file responses to the motion for rehearing and
the petition for writ of habeas corpus by June 15, 2017. No
responses were filed. We grant the motion for rehearing,
withdraw and vacate our prior opinion and order dated May 9,
2017, and deny relator's petition for writ of habeas
corpus. This is now the opinion of the Court.

Procedural
History

Relator's
divorce was finalized on June 29, 2007. The final decree
ordered relator to pay monthly child support. By May 2008,
relator was in arrears on those payments. In a May 1, 2008
order enforcing the child support obligation, the trial court
found relator in contempt but suspended the commitment to
county jail and placed him on community supervision. By
November 2009, relator was $21, 435.61 in arrears. In a
November 19, 2009 order, the trial court granted judgment on
the arrearages against relator and ordered him to pay $200.00
a month until the judgment was satisfied in full or "on
termination of the child support obligation for any child the
subject of this suit." The court continued the 2008
suspension of its commitment orders and continued
relator's community supervision. The court entered a
similar order on December 2, 2013. By December 2014,
relator's arrearages had reached $34, 440.29. On December
8, 2014, the trial court entered an order enforcing the child
support obligation but again suspended the commitment, placed
relator on community supervision, and set up a monthly
payment plan. Following the 2014 order, it appears relator
paid monthly until he lost his job and failed to pay the
October, November, and December 2016 payments and the January
2017 payment. As a result, the Dallas County Domestic
Relations Office moved to revoke relator's community
supervision and to enforce the child support order.

Relator
appeared in person and through counsel at the March 6, 2017
hearing on the motion to revoke. Relator testified that he
missed the four payments because he lost his job and could
not pay. In the past he could only find work paid through
straight commissions. But he testified that he was able to
pay and did pay his child support obligations when he was
employed, sometimes more than the monthly amount required,
but he could not pay during times of unemployment. He also
testified that he had been employed as a salaried employee
since January 2017 and could now make the monthly payments.
This was the first salaried job he has had in a number of
years, so the child support obligations could be deducted
automatically by the State from his paycheck. Relator
testified that if he is confined in jail he will lose his job
and be unable to pay monthly child support and the
arrearages. The evidence showed that relator was required to
pay $13, 300.00 between November 2014 and the date of the
hearing and had paid $12, 286.54 during that time.

In a
March 6, 2017 order, the trial court granted the motion to
revoke, and relator was taken into custody. The court ordered
relator to remain in custody for 180 days and until relator
has paid the full child support arrearages of $34, 440.29 and
$208.00 in fines and court costs. Specifically, the order
states that the court revokes the community supervision and
orders the following:

(a). that Obligor shall be committed and
confined in the County Jail of Dallas County, TX., for 180
days, and

(b). until such time as Obligor has paid the
court fine to the Dallas County Domestic Relations Office, in
the amount of $100.00, as imposed and ordered on
December 2, 2013; and

(c). until such time as Obligor has paid the
full child support arrearages of $34, 440.29; and

(d). until such time as Obligor has paid the
full amount of $108.00 as costs of Court to the
Dallas County District Clerk.

Relator
was arrested, committed to the Dallas County jail, and
remains in custody. In this original proceeding, relator asks
the Court to issue a writ ordering his immediate release and
vacatur of the trial court's March 6, 2017 order.

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